The crime of possession of child pornography under the Spanish Penal Code involves acquiring or possessing pornographic material involving minors, or content where people with disabilities requiring special protection have been exploited in its production.
This crime is specified in Article 189.5 of the Spanish Penal Code, which imposes penalties ranging from 3 months to 1 year in prison, or fines of 6 months to 2 years.
The article also applies the same penalties to anyone who knowingly accesses child pornography or content involving people with disabilities through information and communication technologies.
An important aspect is the term “knowingly.” For example, accidentally downloading a video from a social network without knowing it contains child pornography would not constitute a crime of possession.
Article 189.5 of the Spanish Penal Code:
“Anyone who acquires or possesses child pornography or material involving persons with disabilities for personal use will be punished with a prison sentence of 3 months to 1 year, or a fine of 6 months to 2 years.
The same penalty will apply to anyone who knowingly accesses this type of content through information and communication technologies.”
What is the crime of distributing child pornography according to the Spanish Penal Code?
The crime of distributing child pornography under the Spanish Penal Code includes producing, selling, distributing, exhibiting, offering, or facilitating the production, sale, or distribution of such material. It also applies to content where peeople with disabilities requiring special protection have been exploited, regardless of whether the material originates abroad or from unknown sources.
This crime is outlined in Article 189.1.b of the Spanish Penal Code, and carries a prison sentence of 1 to 5 years.
Article 189.1 of the Spanish Penal Code:
“Anyone who produces, sells, distributes, exhibits, offers, or facilitates the production, sale, or distribution of child pornography, or material involving persons with disabilities, or possesses it for these purposes, regardless of its origin, will face a prison sentence of 1 to 5 years.”
This article also addresses the possession of child pornography for distribution purposes, which carries a harsher penalty than mere possession for personal use (regulated in Article 189.5).
Aggravated offenses related to the distribution of child pornography
Article 189.2 of the Spanish Penal Code increases the prison sentence to 5 to 9 years for offenses related to the distribution of child pornography, under the following circumstances:
- When minors under 16 are involved.
- If the acts are particularly degrading or violent.
- When minors in especially vulnerable situations due to illness or disability are exploited.
- If the offender knowingly or recklessly endangers the life or health of the victim.
- If the material is substantial in quantity.
- When the offender is part of an organization engaged in such activities.
- If the offender is in a position of authority or trust over the victim.
- In cases of repeat offenses.
Definition of child pornography under the Spanish Penal Code
Article 189.1 of the Spanish Penal Code defines child pornography, or material involving persons with disabilities needing special protection, as:
- Any visual material depicting a minor or a person with disabilities engaged in explicit sexual activity, real or simulated.
- Any depiction of the sexual organs of a minor for primarily sexual purposes.
- Any visual material showing a person who appears to be a minor participating in explicit sexual activity, unless it is confirmed that the person was of legal age at the time the images were taken.
- Realistic images of a minor participating in explicit sexual activity or of their sexual organs, intended for sexual purposes.
This legal framework governs offenses related to child pornography in Spain.
Sandra Márquez
Criminal & Family Lawyer
CEO Expat & Legal Spain